Public Corporation Law Quarterly by zbs12713


									                                                                                                           Winter 2009, No. 1

                                         Exclusionary Zoning as Analyzed
                                         in Recent Decisions of the Court of
                                         Appeals: Are Such Claims Effectively
                                         Excluded from the Developer's
        Winter 2009, No. 1
                                         Lawyer's Repertoire?
c   o      n    t       e   n    t   s   By Drew W. Broaddus, O'Connor De Grazia Tamm & O'Connor PC

        chairperson’s corner–2
                    •                         Some municipal land use attorneys have noticed an increase in exclusionary zon-
         state law update–10             ing claims in recent months. This is somewhat surprising since the Michigan Supreme
                                         Court’s most recent discussion of the subject, in Adams Outdoor v City of Holland,
                                         indicated that such claims are difficult to support; courts since Adams have often re-
         winter seminar–12               jected exclusionary zoning claims on the grounds that either the “total exclusion” and/
                  •                      or “demonstrated need” elements could not be satisfied. The burden of proving such
          save the date–15               claims seemed, to many land use attorneys, to be so great that many plaintiffs simply
                  •                      stopped pursuing them, choosing instead to focus upon more common theories such
        opinions of attorney             as takings and substantive due process. However, more recent Court of Appeals opin-
        general mike cox–16              ions suggest that exclusionary zoning claims may be asserted under a constitutional
                                         (rather than statutory) analysis, and that such claims may not be subject to the same
                    •                    finality requirement that stands as a bar to many other land use challenges. This
        legislative update–17            article will focus upon two such decisions—D.F. Land Development, L.L.C. v Charter
                                         Township of Ann Arbor and Hendee v Township of Putnam—in considering whether
                                         the concept of exclusionary zoning may warrant renewed attention from both sides of
    i'll bet you didn't know–19          the land use bar.

                                         Exclusionary Zoning Jurisprudence in Michigan
                                                  The principle that local units of government cannot totally prohibit certain
                                         land uses was initially articulated in decisions from various northeastern states in the
                                         early 1970s. These decisions focused upon concerns that newly developing commu-
                                         nities would exclude low and moderate income families while pursuing goals such as
                                         achieving a higher tax base or aesthetically pleasing development. In Michigan, the
                                         rule was first articulated in Kropf v City of Sterling Heights, where the Court stated that
                                         “[o]n its face, an ordinance which totally excludes from a municipality a use recog-
                                         nized by the constitution or other laws of this state as legitimate also carries with it a
                                                                                                                Continued on page 3
Public Corporation Law Quarterly

       Public Corporation Law
                                                Chairperson’s Corner
              Quarterly                         By William B. Beach, Miller Canfield
    	 The Public Corporation Law Quarterly
    is published by the Public Corporation
    Law Section of the State Bar of Michigan,
    Michael Franck Building, 306 Townsend            Mary Fales (Ann Arbor) and Marcia Howe (Johnson, Rosati) have put together a
    Street, Lansing, Michigan 48933-2083.       great program, “Thriving on a Dime: Practical Advice for Public Agency Attorneys in
                                                Financing and Contracting Services in a Tight Economy,” for the Public Corporation
      Correspondence and submissions
                                                Law Section’s winter program at St. John’s Conference Center in Plymouth. It will
    should be directed to Thomas R. Schultz,
    Secrest Wardle Lynch Hampton Truex &        look at the issue through the eyes of the public accountants (Plante & Moran), lead
    Morley PC, 30903 Northwestern Hwy,          us through AIA contracts from the owner’s perspective of cost savings, discuss how to
    PO Box 3040, Farmington Hills, MI           save on retirement and pension costs, and avoid exposure to ADA. If you have never
    48333, phone (248) 851-9500. Articles
    must be in Word format, double-spaced,
                                                been to St. John’s, a visit to the facility alone is worth the time and money—especially
    and e-mail to tschultz@secrestwardle com    if you stick around for the reception. The lamb chops and crab cakes are superb.
                                                     The food is almost as good as that found at the Grand Hotel, which will be the
                                                next venue of the Public Corporation Law Section. The summer seminar will be held
             Section Officers                   June 26, 27, and 28 on Mackinac Island. We are just beginning to line up speakers
                                                for this event and are open to any suggestions for topics and volunteers. If you have
        William B. Beach, Chairperson
                   Detroit                      had to deal with an issue of statewide impact or simply experienced something that
       James E. Tamm, Vice Chairperson
                                                would share a laugh, let us know. Or if there is something that you see coming on
                Bloomfield Hills                the horizon that all of us should become prepared to meet, raise the issue now and
                                                we can have the experts lined up to teach us what to do. Sometimes the best part of
              Eric D. Williams,                 the event comes during the cracker-barrel session when issues are just thrown out and
              Secretary-Treasurer               chewed on by everyone in the audience. Chicken ordinances got everyone’s attention
                  Big Rapids                    at Drummond Island.
                                                     I am looking forward to seeing all of you at both of these events and hope that, if
        Publications Committee                  you cannot attend, you will e-mail your suggestions, questions, issues, or whatever. If
                                                you can think of ways we can better serve you, lay it out. The Board is always looking
      Thomas Schultz and Steve Joppich          for new ways to serve your best interests. 
             Farmington Hills

               Richard J. Figura
                 Flint/Empire                                                  Call for Articles
                Marcia Howe
               Farmington Hills                      We need articles. While the winter edition of the Quarterly is usually pretty thin
                                                anyway, we were lucky to get a good long lead article for it. Everyone is busy, and
              George M. Elworth
                                                we understand that it is not easy to find even a few hours to put together a piece
                                                that you want to see in print. But this section is full of talented and knowledgeable
                 Phil Erickson                  attorneys who are generous with their time and who have a lot to say about issues
                 East Lansing                   that matter to the rest of us. The Quarterly is open to publishing articles of pretty
                                                much any length, on any subect relavant to the practice of municipal law. And there
                                                are plenty of timely and hot topics waiting to be written about—the preemptive
    The views expressed in the publication      nature of bankruptcy sale orders (seeing a lot of those); incorporating green stan-
    do not necessarily reflect those of         dards (e.g., LEED, stormwater BMPs) into ordinances; rules, standards, and good
    the Public Corporation Law Section          forms for public contracts; shared services and interlocal agreements; financial incen-
    or the State Bar of Michigan. Their
    publication does not constitute an          tives/tax abatements (MEDC, IFEs, MEGA); property tax assessment challenges.
    endorsement of the views.                   Of course, there’s always something new on even the usual topics of FOIA, OMA,
                                                takings/due process, etc.
                                                      Contact either or with an
                                                idea or a proposed article. We need articles. 

                                                                                                                Winter 2009, No. 1
Exclusionary Zoning . . .
Continued from page 1

strong taint of unlawful discrimination and the denial of equal      niably prohibits a use, if the use exists in nearby municipalities.
protection of the law as to the excluded use.” In so holding,        Similarly, an exclusionary zoning claim may fail even if the use
the Court in Kropf rejected the “favored use” analysis which         is not permitted in any district if, for example, the use may be al-
the Court of Appeals had set forth in Bristow v City of Wood-        lowed by a special use permit ; “a use is not necessarily excluded
        8                              9                                                                                         21
haven and Simmons v Royal Oak. According to the “favored             simply because it does not yet exist in the zoning map.” On
use” theory, certain land uses were recognized as bearing such       the other hand, an exclusionary zoning claim may survive sum-
a “real, substantial, and beneficial relationship to the public      mary disposition even when an ordinance specifically provides
health, safety, and welfare” that any ordinance which was “at        a zoning district for a certain use; “[a] zoning ordinance that
odds” with such uses should lose its presumption of validity.        creates a classification but does not apply that classification to
The Court in Kropf rejected this reasoning, finding that the         any land is exclusionary on its face.” Likewise, even where a
concept of “favored or preferred use” had “no statutory or case      municipality had created a classification that permitted mobile
law foundation in this state.” The Court made clear that, in         home parks and allocated 96 acres of land to that classification,
order to strip a zoning ordinance of its presumption of validity,    a plaintiff could satisfy the total prohibition requirement where
one must show that the ordinance totally excluded a particular       there was evidence that the only land selected was clearly not
     12                                                                                             23
use. Although Kropf is generally recognized as one of the first      desirable for residential use.
Michigan decisions to acknowledge the rule against exclusion-             Regarding the second element, courts have found that a
ary zoning, the plaintiff in Kropf was unable to take advan-         “demonstrated need” is not established by showing a “self-serv-
tage of it; the Court found that in the case “presently before us    ing demand.” Rather, the need must be public in nature.
… the general use is reasonably permitted in the community           Moreover, the need may be satisfied by the availability of simi-
and the only issue is whether it was arbitrarily or capriciously     lar uses outside of the municipality in question. Thus, “every
denied as to this particular parcel of land.”                        municipality is not required to provide land for every conceiv-
      Shortly after Kropf, the rule against exclusionary zon-        able land use within its geographical boundaries.” It has not
ing was codified in Michigan’s zoning enabling statutes, for-        been uncommon for courts to avoid addressing the demon-
merly MCL 125.227a (counties), 125.297a (townships), and             strated need element altogether, where they have found that
125.592 (cities and villages). These statutes expanded the           the plaintiff has failed to satisfy the first element (i.e., where
                                           16                                                                             27
concept beyond the context of housing. Since 2006, the rule          no total prohibition of the use has been found).
has been codified in the current Zoning Enabling Act, MCL                 One important threshold question remains unanswered
125.3207, as follows: “A zoning ordinance or zoning decision         by the statutes: what constitutes a use for the purposes of
shall not have the effect of totally prohibiting the establish-      exclusionary zoning? The statutes and subsequent case law
ment of a land use within a local unit of government in the          also left open the question of whether a distinct cause of ac-
presence of a demonstrated need for that land use within either      tion for exclusionary zoning may continue to exist under the
that local unit of government or the surrounding area within         Michigan Constitution and if so, what the elements of such a
the state, unless a location within the local unit of government     claim would be. Notwithstanding these ambiguities, the case
does not exist where the use may be appropriately located or         law seemed to establish by the early part of this decade that
the use is unlawful.” This language is “nearly identical” to that    exclusionary zoning claims, in general, would be difficult to
of the earlier zoning enabling statutes.                             advance beyond the summary disposition phase, with courts
      Courts interpreting these provisions have found that, in       frequently dismissing such claims under MCR 2.116(C)(10)
order to establish a violation of the statute, “plaintiffs must      on the grounds that the use in question had not been “totally
show (1) that the challenged ordinance has the effect of totally     excluded.” This trend did not appear to be affected by the
excluding the land use within the [municipality], (2) there is a     2006 amendments to the Zoning Enabling Act.
demonstrated need for the excluded land use in the [municipal-
ity] or surrounding area, (3) the use is appropriate for the loca-   Hendee v Township of Putnam
tion, and (4) the use is lawful.” Regarding the first element,            One recent opinion which defies this apparent trend is
courts have held that “[t]he total-prohibition requirement of        Hendee v Township of Putnam. In Hendee, the plaintiffs
this statute is not satisfied if the use sought by the landowner     brought several claims based upon Hendee Township’s de-
otherwise occurs within township boundaries or within close          cision not to allow a manufactured housing community
geographical proximity.” Thus, an ordinance can arguably
survive an exclusionary zoning challenge, even when it unde-                                                      Continued on next page

Public Corporation Law Quarterly

Exclusionary Zoning . . .
Continued from page 3

(MHC) on a 144-acre tract which plaintiffs owned within the           of the issues raised by the township on appeal.” After discuss-
township. The tract was zoned agricultural-open space (A-O)           ing the four elements of an exclusionary zoning claim under
district, which allowed, among other uses, farming and the de-        the statute, the Court noted that “demonstrated need” ele-
velopment and construction of single-family residential dwell-        ment is based only upon the language of the statute, and is
ings on, minimally, ten-acre lots. After various rezoning pro-        not a required part of the constitutional analysis. The Court,
posals were unsuccessful, plaintiffs filed suit, alleging that the    therefore, declined to address the issues associated with dem-
Township had excluded manufactured housing in violation of            onstrated need. Then, analyzing the total prohibition ele-
MCL 125.3207 and the Michigan Constitution. Following                 ment, the Court found that “[a]s of the date of trial, no land
a bench trial, the trial court ruled that the A-O zoning classi-      in the township was presently designated for use as an MHC,
fication was unconstitutional as applied to plaintiffs’ property,     nor were any MHCs in existence. While the township’s master
that the total exclusion of MHCs in the township constituted          plan for future land use designated 80 acres near the village of
illegal exclusionary zoning and violated plaintiffs’ substantive      Pinckney for an MHC, the evidence strongly supports, and
due process and equal protection rights, that the development         we find no error with, the trial court’s conclusion that this
of a 498-unit MHC on plaintiffs’ property reflected a reason-         land is unsuitable for an MHC.” Although the Township
able use of the property, and that the Township was enjoined          contended that there was no exclusionary zoning because there
from enforcing the A-O zoning classification and from inter-          were some mobile or manufactured homes in the township,
fering with plaintiffs’ development of an MHC.                        the Court of Appeals rejected this argument; the Court found
     Defendant appealed, and the Court of Appeals, in a lengthy       that “the use at issue here is not individual manufactured or
but unpublished decision, affirmed in relevant part. As it per-       mobile homes; rather, the relevant use is MHCs. There is a
tained to exclusionary zoning, the opinion first addressed the        difference between placing an individual home on a site and
question of whether the claims were ripe. This required a dis-        developing an entire community of manufactured homes on a
cussion of the rule of finality. “In the context of zoning cases,     site.” The Court found that MHC’s were totally prohibited
the doctrine of ripeness is tied to the rule of finality, which is    despite the fact that the Township’s ordinance recognized an
concerned with whether the initial decisionmaker has arrived          MHC zoning classification as a potential permissible use sub-
at a definitive position on an issue that inflicts an actual and      ject to a rezoning request.
concrete injury.” The Court explained that whether a land                  The Court of Appeals summarized its holding with re-
use claim is subject to finality turns, in part, upon whether the     spect to the exclusionary zoning claim as follows:
claim is pled as a “facial” or “as applied” challenge. A challenge         [W]e hold that the township effectively and totally
to the validity of a zoning ordinance “as applied” is subject to           prohibited MHC land use because (1) there is no
the rule of finality, but finality is not required for facial chal-        land presently designated for MHCs, (2) the land
lenges because such challenges attack the very existence or en-            designated in the master plan (80 acres near Pinck-
actment of an ordinance. However, the Court stopped short                  ney) for an MHC is not actually suitable for an
of finding that an exclusionary zoning claim would “constitute             MHC, thereby reflecting an intent to exclude any
a facial challenge that is not subject to the rule of finality.”           and all MHCs in the township, (3) the township has
Although the Court found “caselaw [which] suggest[ed]” that                a problematic history of designating land for MHCs
exclusionary zoning claims would not be subject to finality,               in master plans and then removing the land in subse-
the Court instead found that the claims were ripe because any              quent plans, again reflecting an exclusionary intent,
further proceedings would have been futile.                                (4) there is no land allowing for an MHC pursuant
     Having determined that the exclusionary zoning claims                 to a special use permit, and (5) although the current
were ripe, the Court began its substantive analysis, finding “it           ordinance scheme recognizes an MHC classification
unnecessary to examine the issue of whether the township en-               zone as a possible permissible use for purposes of a
gaged in exclusionary zoning in violation of MCL 125.297a                  rezoning request, it is evident that the township will
because we conclude that the township engaged in exclusion-                not grant any such rezoning requests for anyone and
ary zoning in violation of the constitution; the remedies for              is effectively prohibiting MHCs. … [R]egardless of
either type of violation are the same.” The Court did, how-                whether the ordinance scheme created and recogniz-
ever, proceed to “briefly address the statute, but only for the            es an MHC classification, the township is engaged
purposes of explaining why it is unnecessary to address some               in exclusionary zoning because the classification has

                                                                                                                  Winter 2009, No. 1

      not been applied to any land in the township so as                 ticular community for the claim to be ripe and judicial review
      to allow for present day development. We also dis-                 appropriate.” Because the plaintiffs in Hendee never submit-
      tinguish the present case from Kirk, supra, in which               ted their request for an MHC to the Township zoning com-
      the plaintiffs argued that the township zoning ordi-               mission, their statutory claim for exclusionary zoning was not
      nance excluded mobile home parks and our Supreme                   ripe for judicial review in Judge Donofrio’s opinion. Judge
      Court ruled that the plaintiffs failed to demonstrate              Donofrio would have found that the constitutional claim was
      that the township excluded such parks. ... Here, no                unripe for similar reasons:
      land is being used for an MHC and the land desig-                       [I]n constitutional exclusionary zoning claims,
      nated in the master plan for an MHC is, contrary to                     plaintiffs must submit their zoning request for con-
      the situation in Kirk, unsuitable for an MHC.                           sideration before the proper administrative body for
      It is important to note that under the constitutional analy-            a suitability and needs determination for the claim
sis, the finding of total prohibition does not establish the cause            to be ripe for judicial review. This is because whether
of action. Rather, it merely shifts the burden to the municipality            a plaintiff ’s exclusionary zoning challenge is brought
to show the exclusion is justified. Having found that MHCs                    pursuant to the statute or under the constitution, the
were effectively and totally excluded from the township, the                  zoning map underlying the challenge is part of the
court in Hendee next sought to ascertain whether the township                 zoning ordinance. See MCL 125.271; MCL 125.280;
is justified in excluding MHCs, i.e., “whether it established that            see also Paragon, supra at 573-574. And a use not yet
the exclusion has a reasonable relationship to the health, safety,            present in the zoning map is not necessarily excluded
or general welfare of the community.” While the Township                      simply because it does not yet exist in the zoning
persuaded the Court of Appeals that excluding an MHC from                     map. See Landon, supra at 168-169. I conclude that
plaintiffs’ property served a legitimate governmental interest,               Landon also applies in exclusionary zoning claims
the Court did not accept the argument that a township-wide                    brought under the constitution. Thus, like statutory
exclusion of MHCs had a reasonable relationship to the health,                exclusionary zoning claims, while plaintiffs need not
safety, or general welfare of the township’s citizens. The absence            satisfy the stringent requirements of the Braun final-
of a demonstrated need was found to be irrelevant to this analy-              ity test, plaintiffs seeking constitutional redress must
sis, not only for the reasons discussed above, but also because “a            first seek and receive an administrative determination
lack of need is not related to the health, safety, and welfare of the         on a request regarding a particular parcel of land.
community.” Although “claiming that there was no appropri-                    Because plaintiffs here never submitted their request
ate location for an MHC and that allowing a development in                    for an MHC to the township zoning commission,
such a situation might endanger the health, safety, and welfare of            plaintiff ’s constitutional claim for exclusionary zon-
the citizenry” might have been “an acceptable argument” in the                ing is not ripe for judicial review and I would decline
Court’s view, this was not the Township’s position. The Court                 to review its merits.
found that the “township never truly presented evidence [or] an               Although Judge Donofrio would not have reached the
argument that there was no land anywhere in the township ap-             merits of either the constitutional or statutory exclusionary
propriate for an MHC.” Therefore, “[t]he township did not                zoning claims, his dissenting opinion addressed the majority’s
satisfy its burden to show that the exclusion of MHCs has a              substantive exclusionary zoning analysis. He appears to have
reasonable relationship to the health, safety, or general welfare        done so primarily for the purpose of expressing his opinion
of the community.”                                                       that, whether brought solely under the statute or solely un-
      Hon. Pat M. Donofrio authored a detailed dissenting                der the Constitution, he would analyze the claims in the same
opinion, expressing his disagreement with several aspects of                                                         56
                                                                         manner, utilizing the statutory approach. Judge Donofrio
the majority’s holding. With respect to exclusionary zoning,             would do so because, in his view, this analysis has been “pre-
Judge Donofrio would have vacated “the trial court’s holdings            scribed by the legislature” and “[i]t is settled law in Michi-
that the exclusion of MHCs in the township constituted ex-               gan that the zoning and rezoning of property are legislative
clusionary zoning for the reasons that they were unripe for                         57
                                                                         functions.” Zoning is a recognized legislative function that
judicial review and furthermore that plaintiffs did not meet             is provided for by statute and therefore, the legislature should
their burden of establishing demonstrated need.” As to the               properly be allowed to define its terms, requirements, and re-
statutory claim, Judge Donofrio agreed with the majority’s               view mechanisms. It did so, in Judge Donofrio’s opinion, by
suggestion that finality is not required to establish ripeness.          codifying the concept of exclusionary zoning.
However, “at a minimum, plaintiffs must submit their zon-                     Having opined that plaintiffs should only be able to
ing request for consideration before the proper administrative
body for a suitability and needs determination in that par-                                                          Continued on next page

Public Corporation Law Quarterly

Exclusionary Zoning . . .
Continued from page 5

prove an exclusionary zoning claim by satisfying the statutory       to have rezoned from general agricultural (A-1) to low density,
elements, Judge Donofrio went on to opine that the plain-            multiple-family residential (R-7). After plaintiff ’s request for
tiffs in this case failed to do so because they did not show a       rezoning was denied, plaintiff sought multiple use variances,
demonstrated need for an MHC in the township. As noted               all of which the Township also denied. Plaintiff then filed its
above, the majority affirmatively declined to address the issue      complaint. Count II of that complaint alleged “exclusionary
of “demonstrated need,” stating that it relates only to a statu-     zoning—denial of equal protection and substantive due pro-
tory analysis and is not required as part of the constitutional      cess.” The parties filed cross-motions for summary disposi-
exclusionary zoning analysis it found to be applicable. How-         tion, with the Township asserting that plaintiff ’s claims were
ever, because Judge Donofrio felt that all exclusionary zoning       not ripe for judicial review because plaintiff did not pursue
claims should be subject to the statutory analysis, he would         alternative forms of relief such as a planned unit develop-
have reached the issue of “demonstrated need.” With respect          ment (PUD) or a conditional zoning agreement under MCL
to the issue of demonstrated need, plaintiffs offered expert tes-    125.3405. At the hearing on the motion, plaintiff asserted that
timony, over the Township’s objection, from Brian Franz. In          its count II constituted a ‘facial challenge” to the zoning or-
Judge Donofrio’s view, Mr. Franz’s testimony was inadequate          dinance because although R-7 zoning is permitted, no land
to establish demonstrated need because he “prepared only ‘de-        in the township has ever been zoned R-7. In response to the
mand analysis’ as opposed to a ‘demonstrated need analysis.’”        Township’s ripeness argument relative to the PUD, plaintiff
This “demand analysis only accounted for a small portion of          replied that it was not eligible for a PUD under the ordinance
the township, namely a six-mile radius of plaintiffs’ property       because the density plaintiff was asking for was inconsistent
and ignored the remainder of the township and the surround-          with the Township’s master plan and because the ordinance
ing area. The record reflects that choosing a six mile radius had    states that a PUD cannot be granted where multi-family hous-
the effect of not considering the existence of a mobile home         ing is proposed. Plaintiff maintained that finality had been
park just 6.1 miles from plaintiffs’ property. Thus, the demand      achieved because plaintiff applied for a variance after being
analysis offered by Franz only considered a six-mile radius sur-     denied rezoning. Defendant denied that the PUD option was
rounding plaintiffs’ property and plainly failed to consider ‘the    unavailable to plaintiff because “if the PUD process that ex-
township or surrounding area’ as required by the statute.”
                                                                59   ists does not satisfy their requests, then the Township Board
The record further displayed that Franz also did not consider        through appropriate processes can change these PUD require-
any readily available and seemingly relevant county-wide data        ments.” Defendant contended that plaintiff ’s claims were not
                                                                     ripe because it could have asked for a change to the PUD ordi-
regarding the existence of current and proposed mobile home
                                                                     nance. Defendant also argued that the fact that plaintiff sought
communities in the county. For these and other reasons de-
                                                                     a variance is not dispositive because “what they sought was a
tailed in Judge Donofrio’s dissenting opinion, he would have
                                                                     variance that would allow the development that had already
excluded Franz’s “proposed expert testimony as unreliable,”
                                                                     been denied.” Defendant argued that plaintiff was bound to
and because “Plaintiffs provided no other evidence regarding
                                                                     seek the minimum variance that would put its property to
demonstrated need at trial[,] … [they] failed to establish that                        64
                                                                     productive use.
there is a demonstrated need for the excluded land use in the                                                                          65
                                     60                                   The trial court, relying upon Braun v Ann Arbor Twp,
township or surrounding area….”
                                                                     found that plaintiff was required to seek the minimum vari-
                                                                     ance. The court held that the claims were not ripe because PUD
D.F. Land Development, L.L.C. v Charter Township of                  classification was a possibility. Specifically with respect to count
Ann Arbor                                                            II, the court dismissed same because it “is one of exclusionary
    In a more recent opinion, another Court of Appeals panel         zoning and as such it is not merely a facial challenge.”
(which, interestingly, included Judge Donofrio along with two             The Court of Appeals reversed and remanded. With re-
judges who were not involved in Hendee) explored some of the         spect to the exclusionary zoning claim, the Court held that, in
same exclusionary zoning issues addressed in Hendee: namely,         light of the plain language of the statute, the Braun ripeness
ripeness and the dichotomy between statutory and constitu-           test cannot apply to statutory exclusionary zoning challenges.
tional exclusionary zoning claims. In D.F. Land Development,         The Court reasoned that, “[w]hen considering the specific lan-
L.L.C. v Charter Township of Ann Arbor, plaintiff owned a 54-        guage of the statute, in the context of a ripeness analysis, if
acre tract of land located off US-23 in Ann Arbor Township,          finality in the Braun sense were required, it would be an insur-
between Ford Road and Earhart Road, which plaintiff sought           mountable requirement for plaintiffs and the statute would be

                                                                                                              Winter 2009, No. 1
rendered nugatory for all reasonable intents and purposes.”              claim, whether labeled as an “as applied” claim or a
This is because the holding in Braun requires plaintiffs to es-          facial claim, as a matter of law can in substance only
tablish finality with regard to a takings claim before the entire        be a facial claim. And “[f ]inality is not required for
matter is ripe for judicial review, by requiring that plaintiffs         facial challenges because such challenges attack the
seek “alternative uses of the property as zoned and was denied,”         very existence or enactment of an ordinance.”
or apply for the “the minimum variance that is necessary to
place the land in productive economic use within the zon-                Although the Court held that “Braun-type” finality did
ing classification.” The court in D.F. Land Dev. found that, in     not apply to constitutional exclusionary zoning claims either,
exclusionary zoning claims brought under the statute, mak-          the Court again held that trial courts “must have some manner
                                           68                       available to [them] to determine whether the zoning ordinance
ing this showing would be impossible. Under the statutory                                                     73
                                                                    at issue indeed is ‘invalid on its face.’” Thus, in constitutional
analysis, the denial of a petition to rezone a single parcel does
                                                                    exclusionary zoning claims, a plaintiff must submit a zoning re-
not show that the municipality has reached a final decision on
                                                                    quest for consideration before the proper administrative body
whether to totally prohibit a particular use within an entire
                                                                    for a suitability and needs determination for the claim to be ripe
township, but only as to that parcel of land for which the re-
                                                                    for judicial review. In so holding, the panel echoed (without cit-
quest had been submitted. In other words, the Court held, a
                                                                    ing) Judge Donofrio’s dissenting opinion in Hendee:
Braun-type finality test “is inappropriate for exclusionary zon-
ing cases because requiring a plaintiff to petition to rezone            [W]hether a plaintiff ’s exclusionary zoning challenge
someone else’s property or to rezone the entire township to test         is brought pursuant to the statute or under the con-
the outside limits of the rezoning denial would be inapposite            stitution, the zoning map underlying the challenge
to the plain language of the statute.”
                                                                         is part of the zoning ordinance. See MCL 125.271;
     Even though the Court did not require “Braun-type” fi-              MCL 125.280; see also Paragon, supra at 573-574.
nality for exclusionary zoning claims, the Court added that              And a use not yet present in the zoning map is not
a plaintiff nonetheless “remains obligated to first submit a             necessarily excluded simply because it does not yet
rezoning request or request for a variance to the appropriate            exist in the zoning map. See Landon, supra at 168-
legislative body before seeking relief from the court system.            169. Landon also applies in exclusionary zoning
Whether a municipality will allow a particular requested use in          claims brought under the constitution. Thus, like
the township must be decided with reference to what the mu-              statutory exclusionary zoning claims, while a plain-
nicipality has authorized and will authorize in its comprehen-           tiff need not satisfy the stringent requirements of the
sive zoning map of the township. While a plaintiff need not              Braun finality test, a plaintiff seeking constitutional
satisfy the stringent requirements of the Braun test, a plaintiff        redress must first seek and receive an administrative
                                                                         determination on a request regarding a particular
seeking relief under the statute must seek and receive an ad-                            74
                                                                         parcel of land.
ministrative determination on a request regarding a particular
parcel of land because a use is not necessarily excluded simply     Again, because the plaintiff here submitted a request for rezon-
because it does not yet exist in the zoning map.” Because the       ing to the Township zoning commission, as well as a request
plaintiff here submitted its request for rezoning to the Town-      for a variance before the ZBA, its constitutional claim for ex-
ship zoning commission, and also sought a variance before the       clusionary zoning was ripe for judicial review.
ZBA, plaintiff ’s statutory claim for exclusionary zoning was            Because the case was dismissed by the trial court exclu-
ripe for judicial review.                                           sively on ripeness grounds, the Court of Appeals was not called
     The D.F. Land Dev. panel went on to acknowledge that           upon to decide, and did not discuss, what the substantive ele-
plaintiff had pled a separate exclusionary zoning claim under the   ments of a constitutional, as opposed to a statutory, exclusion-
Michigan Constitution. The Court found that this claim was          ary zoning claim would be. However, in addressing ripeness,
also ripe for nearly the same reasons as the statutory claim:       the Court did analyze the two theories separately, suggesting
     Like the statutory exclusionary zoning challenge un-           that there might be some substantive difference as the majority
     der MCL 125.297a, a constitutional exclusionary                found in Hendee.
     zoning challenge requires a proponent to establish
     that the use is excluded in the municipality. As the           Conclusion
     Court in Smookler observed, “when confronted with                  For many years, exclusionary zoning claims seemed to be
     a regulation invalid on its face, it is not necessary          viable only in the most extreme cases, with such claims most
     for this Court to examine the reasonableness of the            commonly being raised ancillary to other land use challenges.
     ordinance as applied to plaintiff ’s land.” For this           Often, the theory was either dismissed on summary disposi-
     reason, plaintiffs’ constitutional exclusionary zoning                                                     Continued on next page

Public Corporation Law Quarterly

Exclusionary Zoning . . .
Continued from page 7

tion, abandoned by the plaintiff, or some combination of the                     pled an exclusionary zoning claim, but stipulated to dismissal of the claim
two. Two recent unpublished opinions from the Court of                           prior to the adjudication of plaintiff ’s other zoning claims).
Appeals, however, suggest that at least one common defense to                4 See, e.g., D.F. Land Development, L.L.C. v Charter Township of Ann Ar-
such claims, “Braun-type” finality, may no longer be available.                bor, unpublished per curiam opinion of the Court of Appeals, decided
                                                                               October 23, 2008 (No 275859); Hendee v Township of Putnam, unpub-
Moreover, the opinion in Hendee suggests, for the first time,
                                                                               lished per curiam opinion of the Court of Appeals, decided August 26,
that plaintiffs may not have to show a demonstrated need for                   2008 (No 270594).
their proposed land use when pleading a constitutional, rather
                                                                             5    Fisher, et al., Michigan Zoning, Planning, and Land Use (Ann Arbor:
than statutory, exclusionary zoning claim. However, neither                      Institute of Continuing Legal Education, 2008), § 1.40, p. 35.
D.F. Land Dev. nor Hendee carry any precedential weight, and
                                                                             6    Id., citing Southern Burlington County NAACP v Mount Laurel, 67 NJ
a closer look at the two opinions, as well as the fundamental                    151; 336 A2d 713 (1975) and Appeal of Girsh, 437 PA 237; 263 A2d 395
elements of the claim under either a statutory or constitutional                 (1970).
theory, reveals that exclusionary zoning claims remain very de-
                                                                             7 391 Mich 139, 155-156 (1974) (emphasis in original).
fensible. Under either theory, the plaintiff must still show a
total exclusion of the land use in question, which has proven to             8 35 Mich App 205 (1971).
be an onerous task. Even if a showing of “demonstrated need”                 9 38 Mich App 496 (1972).
is not required to support constitutional exclusionary zoning                10 Bristow, supra at 210-211. It has long been the rule under Michigan law
claims, the advantage this may provide to plaintiffs could be                  that a zoning ordinance comes to the court “clothed with every presump-
illusory, as a showing of total prohibition under such a theory                tion of validity.” Brae Burn, Inc. v City of Bloomfield Hills, 350 Mich 425,
merely shifts the burden. In those limited cases where a total                 432 (1957). See also Newman Equities v Meridian Township, 264 Mich
                                                                               App 215 (2004).
prohibition is proven under a constitutional theory, the mu-
nicipality will still have the opportunity to demonstrate that               11 Kropf, supra at 155-156.
the total prohibition of the use in question is justified. On                12 Id.
the other hand, in those limited cases where a total prohibi-                13 See Fisher, et al., supra at § 1.40, p. 35; Crawford, Michigan Zoning and
tion is proven under a statutory theory, the municipality is still                          rd
                                                                               Planning (3 Ed) (Ann Arbor: Institute of Continuing Legal Education,
free to argue that a “demonstrated need” has not been shown.                   1988), § 1.07, p. 42-43.
In addition, the holding of D.F. Land Dev. that “Braun-type”                 14 Id. at 156.
finality does not apply to such claims has yet to be adopted
                          77                                                 15 Fisher, et al., supra at § 1.40, p. 35; Crawford, supra at § 1.07, p. 42-
in a published opinion. Even if “Braun-type” finality is re-                   43.
jected in the exclusionary zoning context, it appears that there
                                                                             16 Fisher, et al., supra at § 1.40, p. 35.
would still be a watered-down ripeness defense available, as
D.F. Land Dev., as well as Judge Donofrio’s dissent in Hendee,               17 See, e.g.,, Houdek, supra at 574 n.1.
suggest that plaintiffs would likely be required to at least seek            18 Id., citing Adams Outdoor, supra at 684 (cities). See also Landon Hold-
and receive an administrative determination regarding their                    ings, Inc v Grattan Twp, 257 Mich App 154 (2003) (townships).
proposed use for a particular parcel prior to filing suit.                  19 Guy v Brandon Twp, 181 Mich App 775, 785-786 (1989).
                                                                             20 Taylor v City of Westland, unpublished per curiam opinion of the Court
About the Author                                                               of Appeals, decided September 20, 2007 (No. 269454), leave denied 480
   Drew W. Broaddus is an associate attorney at O’Connor,                      Mich 1033 (2008). The plaintiff in Taylor operated two businesses at the
                                                                               same location, a towing service for stranded vehicles, and a vehicle storage
DeGrazia, Tamm & O’Connor, PC in Bloomfield Hills.
                                                                               and refurbishing service. The City took the position that the applicable
                                                                               zoning classification did not permit plaintiff ’s businesses, and that special
Endnotes                                                                       land use approval was required. Plaintiff filed suit, arguing, among other
1 463 Mich 675, 684 (2001).                                                    things, that the City’s zoning ordinance totally prohibited these land uses
                                                                               because “no district within the city allow[ed] their proposed uses without
2 See, e.g., Houdek v Centerville Twp, 276 Mich App 568, 575 (2007).
                                                                               a special land use permit.” Id. at 5. The Court of Appeals rejected this
3 See, e.g., Grand Blanc Venture L.L.C. v Charter Township of Grand Blanc,     argument, finding that “[e]ven if plaintiffs are correct that the city allows
  unpublished per curiam opinion of the Court of Appeals, decided June         for their proposed uses only by special land use permit, this Court has
  10, 2008 (No. 276311), at 6 n.14 (plaintiff pled an exclusionary zoning      held that a zoning ordinance permitting a use only by a special use permit
  in its complaint but abandoned the theory on appeal); JGA Development        does not violate [exclusionary zoning]…. Accordingly, plaintiffs cannot
  v Charter Township of Fenton, unpublished per curiam opinion of the          establish that the City’s zoning decisions had the effect of totally prohibit-
  Court of Appeals, decided August 21, 2008 (No. 277243), at 2 (plaintiff      ing their proposed land uses….” Id., citing Landon, supra at 172-173.

                                                                                                                                   Winter 2009, No. 1

21 D.F. Land Development, supra at 8, citing             contained no mobile home parks or multi-              Schoolcraft Egg while at the same time finding
  Landon, supra at 168-169.                              family units. However, Countrywalk’s due              that plaintiff had presented triable due pro-
                                                         process and equal protection challenge to the         cess and equal protection claims. Id.
22 Anspaugh v Imlay Twp, 273 Mich App 122,
                                                         ordinance failed, as the City was able to sup-
  127-128 (2006), vacated 480 Mich 964                                                                      31 See, e.g., Houdek, supra at 574 n.1.
                                                         port its exclusion of multi-family uses with
  (2007). While Anspaugh was vacated, on un-
                                                         legitimate governmental concerns regarding         32 Unpublished per curiam opinion of the
  related grounds, the relevant portion of the
                                                         traffic congestion and safety. Countrywalk,          Court of Appeals, decided August 26, 2008
  Court of Appeals’ opinion in Anspaugh relied
                                                         supra at 24-25. However, it should be noted          (No 270594).
  upon Smookler v Wheatfield Twp, 394 Mich
                                                         that because the ordinance did exclude multi-
  574, 577 (1975) where Justice Williams, writ-                                                             33 Plaintiffs also brought other constitutional
  ing a concurring opinion (which happened to            family dwellings, the ordinance was not pre-
                                                         sumed valid. Id. at 23. Rather, the City had         claims which, other than the constitutional
  be the only opinion), stated: “This zoning ap-                                                              exclusionary zoning claim, are beyond the
  peal invites this Court to once again confront         to (and did) satisfy its burden of showing that
                                                         “the exclusion has a reasonable relationship         scope of this article.
  a facet of exclusionary zoning, this time the
  creation of a zoning classification without at-        to the health, safety, or general welfare of the   34 Id. at 4, citing, among other cases, Paragon
  taching it to any specific land. Such a zoning         community.” Id. at 24.                               Properties Co v Novi, 452 Mich 568, 577
  ordinance is, of course, invalid on its face, and   27 Adams Outdoor, supra at 685-686; Landon,             (1996) and Braun v Ann Arbor Charter Twp,
  this causes us to invalidate the zoning ordi-         supra at 167 (“In the present case, the trial         262 Mich App 154, 158-159 (2004).
  nance of the defendant township as exclusion-         court did not reach the issues regarding            35 Hendee, supra at 4-5 (citations omitted).
  ary.” Id.                                             whether there was a demonstrated need and
                                                        appropriate location for the use, ruling in-        36 Id. at 5.
23 English v August Township, 204 Mich App 33
  (1994). See also Fisher, et al., supra at § 9.6,      stead that there was no total exclusion. The        37 The cases cited by the Court included Land-
  p. 273 (discussing English).                          statute’s language clearly precludes only total        on, supra at 177 and Countrywalk, supra at
                                                        exclusion.”); Bell River Assoc v China Charter         22.
24 Outdoor Systems, Inc v City of Clawson, 262          Twp, 223 Mich App 124, 136 (1997). See
  Mich App 716, 721 (2004). See also Houdek,            also Johnecheck v. Bay Township, 119 Fed Appx       38 Id. For the proposition that futility repre-
  supra.                                                707, 708 (6th Cir 2004) (applying Michigan            sents an exception to the rule of finality, the
                                                        law and finding that defendant’s ordinance            Court cited L & L Wine & Liquor Corp v Li-
25 See, e.g., ACC Industries v Charter Township
                                                        did not totally prohibit wind turbine genera-         quor Control Comm, 274 Mich App 354, 358
  of Mundy, unpublished per curiam opinion of
  the Court of Appeals, decided February 24,            tors; question of demonstrated need therefore         (2007) and Turner v Lansing Twp, 108 Mich
  2004 (No. 242392): ”The trial record…in-              did not need to be addressed).                        App 103, 108 (1981).
  cluded the testimony of the township’s expert       28 Fisher, et al., supra at § 1.40, p. 35. See also   39 Hendee, supra at 9.
  planner that there was no ‘great demand’ for
                                                        Adams Outdoor, supra at 684 n.10: “Defen-           40 Id.
  [mobile homes] … when the housing mar-
  ket was evaluated by looking beyond the
                                                         dant contends that billboards in general
                                                         do not constitute a ‘use’ within the zon-          41 Id. at 10.
  township boundaries, there was insufficient
  demand for plaintiff ’s proposed housing de-           ing context. Because of our resolution             42 Id.
  velopment to require a zoning classification           in this case, we can assume without                43 Id.
  change. The trial court properly weighed               deciding that billboards constitute such
  evidence regarding the appropriate housing             a ‘use.’” ). See also Johnecheck, supra (as-       44 Id. at 12.
  market, data regarding absorption rates, and           suming, without deciding, that wind turbine        45 Id. at 14-15, discussing Kirk v Tyrone Twp,
  the need for additional mobile home parks              generators are a “use” within the zoning con-        398 Mich 429 (1976).
  in the area. Plaintiff ’s own proofs showed            text).
  that Genesee County has the largest percent-                                                              46 Hendee, supra at 16-18.
  age of persons living in mobile home parks          29 Hendee, supra at 10 (Donofrio, J., dissent-
  anywhere in the state, and that the percent-          ing). See also Johnecheck, supra (acknowledg-       47 Id. at 16, citing Landon Holdings, supra at
  age of persons living in mobile home parks            ing that plaintiffs had also pled an exclusion-       176 and Countrywalk, supra at 24.
  in Mundy Township is higher than the state            ary zoning claim under the state constitution,      48 Hendee, supra at 16.
  average. Such testimony undercuts plaintiff ’s        but dismissing that claim with little analysis,
  exclusionary zoning claim.” See also Houdek,          finding that plaintiff could not “meet the dif-     49 Id. at 18.
  supra (holding that the ability of the Grand          ficult burden of demonstrating no reasonable
                                                                                                            50 Id.
  Traverse Septage Treatment Plant (“GTSTP”)            relationship to a legitimate governmental in-
  to receive and treat Centerville Township’s           terest,” citing Landon, supra).                     51 Id.
  septic waste, along with the existence of an-                                                             52 Hendee, supra at 10 (Donofrio, J., dissenting).
                                                      30 See, e.g., Landon, supra at 173, 178; School-
  other available facility in Benzie County, de-
                                                        craft Egg, Inc. v Schoolcraft Twp., unpublished        As discussed above, the majority held that
  feated plaintiff ’s assertion of a demonstrated
                                                        per curiam opinion of the Court of Appeals,            “established need” is only a required element
  need for additional septage disposal sites in
                                                        decided August 11, 2000 (No. 216268), at               of a statutory exclusionary claim. However,
  Centerville Township).
                                                        8 (holding that plaintiff ’s exclusionary zon-         as will be discussed below, Judge Donofrio
26 Fisher, et al., supra at § 9.6, p. 273, citing       ing claim was properly dismissed because the           would have only applied the statutory analy-
  Countrywalk Condos v City of Orchard Lake             ordinance “restricted” but did not “exclude”           sis and therefore, plaintiffs’ inability to satisfy
  Village, 221 Mich App 19 (1997). In Coun-             intensive livestock operations). Interestingly,        this element would have been fatal to their
  trywalk, the City of Orchard Lake was zoned           the Court of Appeals affirmed the dismissal            exclusionary zoning claims, in his view.
  almost exclusively for single-family use and          of plaintiff ’s exclusionary zoning claim in
                                                                                                                                      Continued on next page
Public Corporation Law Quarterly
Exclusionary Zoning . . .
Continued from page 9

53 Id. at 8.                                         67 Id. at 8.                                         76 Adams Outdoor, supra at 685-686; Landon, su-
                                                     68 The statute at issue in D.F. Land Dev. was          pra at 167. (“In the present case, the trial court
54 Id.
                                                       former MCL 125.297a. However, the Court              did not reach the issues regarding whether
55 Id. at 9.                                           noted that the current statute “recodified” the      there was a demonstrated need and appropriate
56 Id. at 10.                                          “prohibition against exclusionary zoning” with       location for the use, ruling instead that there
                                                       “nearly identical language.” D.F. Land Dev., su-     was no total exclusion. The statute’s language
57 Id., citing Sun Communities v Leroy Twp, 241        pra at 7 n.3.                                        clearly precludes only total exclusion.”). Bell
  Mich App 665, 669 (2000) and Arthur Land                                                                  River Assoc v China Charter Twp, 223 Mich
                                                     69 Id. at 8.
  Co, LLC v Otsego Twp, 249 Mich App 650, 662                                                               App 124, 136 (1997). See also Johnecheck, su-
  (2002).                                            70 Id., citing Landon, supra at 168-169.
                                                                                                            pra (applying Michigan law and finding that
58 Hendee, supra at 11 (Donofrio, J., dissenting).   71 D.F. Land Dev., supra at 9, citing Smookler,        defendant’s ordinance did not totally prohibit
                                                       supra at 581.                                        wind turbine generators; question of demon-
59 Id.
                                                     72 D.F. Land Dev., supra at 9, citing Paragon, su-     strated need did not need to be addressed).
60 Id.                                                 pra at 577.
                                                                                                          See, e.g., Adams Outdoor, supra at 684; Landon,
61 Unpublished per curiam opinion of the Court       73 D.F. Land Dev., supra at 9.                         supra at 173, 178; Schoolcraft Egg, supra at 8
  of Appeals, decided October 23, 2008 (No                                                                  (holding that plaintiff ’s exclusionary zoning
                                                     74 Id. at 9-10. Compare Hendee, supra at 10
  275859).                                                                                                  claim was properly dismissed because the ordi-
                                                       (Donofrio, J., dissenting).
62 Id. at 2.                                                                                                nance “restricted” but did not “exclude” inten-
                                                     75 See, e.g., Grand Blanc Venture, supra at 6 n.14
                                                                                                            sive livestock operations). See also Johnecheck,
63 See MCL 125.3503.                                   (plaintiff pled exclusionary zoning in its com-
                                                       pliant but abandoned the theory on appeal);
64 D.F. Land Dev., supra at 2.                         JGA Development, supra at 2 (plaintiff pled an     77 See Hendee, supra at 5-6.
65 262 Mich App 154 (2004).                            exclusionary zoning claim, but stipulated to
                                                       dismissal of the claim prior to the adjudication   78 D.F. Land Dev., supra at 9-10; Hendee, supra at
66 D.F. Land Dev., supra at 3.                         of plaintiff ’s other zoning claims).                 8-9 (Donofrio, J., dissenting).

State Law Update
By Ronald D. Richards Jr. and Josh Richardson, Foster, Swift, Collins & Smith, PC

          Court Strikes Down Township Ordinance Regulating                           As with all preemption issues, the Court relied heavily on
                           Sale of Pesticides                                   the language in the underlying statute, the NREPA. Applying
                                                                                that statutory language, the Court held that the NREPA does
          War-Ag Farms, LLC v Franklin Township, unpub-
                                                                                allow some regulation of farm chemicals but that the Town-
         lished opinion per curiam of the Court of Appeals
                                                                                ship’s ordinance was not acceptable. Specifically, it found that
                (Docket No. 270242, dec’d 10/7/08)
                                                                                the Township’s ordinance conflicted with the Department’s
     Franklin Township denied a conditional use permit                          decision to grant to the plaintiffs a license to sell and distrib-
(CUP) that the plaintiffs sought to sell and distribute seed,                   ute pesticides and fertilizers at the very location at issue in the
pesticides, and fertilizers from a 20-acre parcel of agricultur-                CUP. It also found the ordinance invalid because it set stan-
ally-zoned property as part of their 1,500-acre farming opera-                  dards above and beyond that which the NREPA set and was
tion. The Township’s denial was based on its ordinance al-                      not approved by the Commission on Agriculture.
lowing sales and distribution only on an operating farm when
the sales are secondary and incidental to the principal farming
                                                                                   Court Upholds Township’s Denial of Variance to Build a Church
operation. Because the Michigan Department of Agriculture
(Department) already issued the plaintiffs the requisite licenses
to sell seed, pesticide, and fertilizer from the same location as                Great Lakes Society v Georgetown Charter Twp, (Docket Nos.
involved in the CUP request, the plaintiffs sued the Township.                                270031/280574, dec’d 10/3/08)
The Court of Appeals held that this ordinance was preempted                         Great Lakes Society (GLS), a religious organization,
by NREPA.                                                                       sought a special use permit (SUP) to construct a two-story

                                                                                                              Winter 2009, No. 1

building for worship services and other activities. The build-            The plaintiffs, property owners affected by the special as-
ing was to consist of a sanctuary for worship services, a min-      sessment, sued for injunctive relief after the Township adopted
istry area, a tape or publication ministry area with recording      the resolution establishing the assessment roll and duration of
studio, a training ministry area, an administration area, health    the special assessment. The plaintiffs argued that the special as-
area, youth center, and a garage. While GLS’s SUP request           sessment was invalid because a majority of the petitioners signed
was pending, the Township amended its zoning ordinance to           the petition to pave only four roads, rather than five. The plain-
require that a church built in a residential district must have     tiffs also challenged the Township’s decision to allow certain
200 feet of frontage on a major street. The zoning board of         property owners to reduce their share of the special assessment
appeals denied GLS’s subsequent variance request from the           by waiving their development rights, because this increased the
frontage requirement. GLS’s SUP request was also denied.            remaining property owners’ shares of the assessment.
GLS then sued the Township, raising various claims.                       The Township sought summary disposition, arguing that
     The Michigan Court of Appeals sided with the Township,         the trial court lacked subject matter jurisdiction over the plain-
holding that the Township’s amended ordinance, which in-            tiffs’ action. The trial court agreed that the Tax Tribunal had
cluded the new 200-foot frontage requirement, was valid. The        exclusive jurisdiction under MCL 205.731(a), and granted the
Township did not adopt the amendment to merely concoct a            Township’s motion.
defense. Instead, the Township adopted the amendment to                   The Court of Appeals upheld the trial court’s decision. It
merely clarify the Township’s longstanding intent to always         held that under MCL 205.701 et seq., the Tax Tribunal “gener-
require 200 feet of street frontage.                                ally has exclusive jurisdiction over a challenge to a governmen-
     The Court also held that the Township zoning board of          tal unit’s decision concerning a special assessment for a public
appeals’ denial of GLS’s variance request was proper. Indeed,       improvement, even when the challenge is couched in constitu-
the Court noted that the Township’s decision was competently        tional terms.…” It further held that, despite the labels used by
made because (1) the purpose of the 200-foot requirement            the plaintiffs, their claims ultimately challenged whether the
was to ensure adequate sight distance for traffic entering and      Township’s decisions concerning the special assessment were
exiting the site; (2) GLS’s application could present traffic and   authorized by statute. As such, the Tax Tribunal had exclusive
public safety issues; and (3) GLS did not meet all requirement      jurisdiction, and the trial court properly granted summary dis-
in the ordinance to get a variance.                                 position in the Township’s favor.
     Finally, the Court held that the variance denial did not
violate the Religious Land Use and Institutionalized Persons        Court Finds No Constitutional Taking Where Alleged Diminution of
Act. The denial did not substantially burden GLS’s religious             Property Value Is Caused by Fluctuating Market Values
exercise since GLS could establish a church on another loca-                  During Government Decision-Making Process
tion so long as it follows the 200-foot frontage requirement
                                                                              Doorenbos v Alpine Township, unpublished
and otherwise complies with the ordinance.
                                                                             opinion per curiam of the Court of Appeals
                                                                               (Docket No. 279998, dec’d 10/16/08).
      Challenge to Validity of Special Assessments Is Within
              Tax Tribunal’s Exclusive Jurisdiction                      In 1987, the plaintiff bought about 168 acres of agricul-
                                                                    turally zoned farmland in Alpine Township. The property was
         Walton v Whitewater Township, unpublished                  actively farmed until 2002, when the plaintiff sold a 45-acre
         opinion per curiam of the Court of Appeals                 parcel of his land to a development company. The plaintiff and
           (Docket No. 274969, dec’d 10/16/08)                      the development company then applied to the Township to
     After receiving two separate petitions, one to pave four       rezone the property to low-density residential. The Township
roads and the other to pave five roads, Whitewater Township         granted the rezoning request in August 2002. But in October
adopted a resolution to create a special assessment district to     of 2002, township citizens petitioned for a referendum elec-
pave five roads within the township. The estimated cost of the      tion, through which the rezoning request was ultimately re-
project was $2,500,000.00. In adopting the resolution, the          jected. Before the referendum election, the development com-
Township determined that the petitions were properly signed         pany deeded the property back to the plaintiff. In December
by property owners whose frontage constituted more than 50          of 2004, the plaintiff sued the Township and argued that the
percent of the improvement’s total frontage, as required by         ordinance as applied violated his substantive due process and
MCL 41.723(3)(b). Additionally, the Township allowed cer-           equal protection rights, and was an unlawful taking. After fil-
tain owners of larger parcels of land within the special assess-    ing suit, the plaintiff reapplied with the Township to rezone the
ment district to reduce their share of the special assessment by    parcel to low-density residential. This request was ultimately
granting the Township recordable covenants waiving develop-         approved in 2006. No petitions for referendum election were
ment rights on their property for a 15-year period.                                                             Continued on next page

Public Corporation Law Quarterly

State Law Update
Continued from page 11
                                                   State Bar of Michigan
                                                  PUBLIC CORPORATION SECTION
filed. The Township then sought
summary disposition, arguing
that no unconstitutional taking
                                                  Thriving on a Dime:
had occurred. The trial court          Practical Advice for Public Agency Attorneys
granted the Township’s motion,
and the plaintiff appealed.             in Financing and Contracting Services in a
     On appeal, the plaintiff ar-                     Tight Economy
gued that he was entitled to just
compensation for the temporary
taking of the 45-acre parcel from                          Friday, February 6, 2009
the time of the township citizens’
petitions for referendum elec-                                  9 a.m. to 4 p.m.
tion to the time the rezoning                       The Inn at St. John’s Conference Center
request was actually approved in
2006, because he was “deprived                                Plymouth, Michigan
of economically viable use of the
property” during that time. The
Court of Appeals disagreed, how-
     The Court held that sum-
mary disposition was properly
granted in the Township’s favor.
In applying the balancing test of
Penn Central Transportation Co
v New York City, 438 US 104
(1978), the Court held that the
plaintiff failed to establish a con-
stitutional taking of property.
It further held that the zoning
ordinance applied equally to all
similarly situated property own-
ers and, because the Township
did not unreasonably delay in
processing the plaintiff ’s rezon-
ing application, no temporary
taking of the plaintiff ’s property
occurred for which just compen-
sation was required. The Court
clarified that “[m]ere fluctua-
tions in value during the process         Experienced attorneys and consultants will share experiences, answer
of governmental decision mak-              questions and lead discussions on topics of public agency interest in
ing, absent extraordinary delay,          controlling costs, meeting compliance requirements and strategies for
are ‘incidents of ownership,’” and     negotiation in connection with public construction projects, ADA compliance
do not constitute a constitutional                         and retirement and benefit programs.
taking. 

                                                                                                    Winter 2009, No. 1

                          February 6, 2009 Public Corporation Section’s
                  Winter Conference at St. John’s Conference Center, Plymouth, Michigan
    “Thriving on a Dime: Practical Advice for Public Agency Attorneys in Financing and
                         Contracting Services in a Tight Economy”

8:30 a.m. to 9:00 a.m. Check in and Continental Breakfast serving chilled juices, fresh fruit, assorted yogurts, a
                       variety of bagels and house-baked pastries.

9:00 a.m. - 10:00 a.m. Helping Local Government in Today’s Environment….Perspectives from the Finance
                       Presenter: Frank W. Audia, CPA, Partner, Plante & Moran, PLLC
                         Frank Audia specializes in auditing and consulting for governmental entities and related
                         organizations. He is the leader of the Plante & Moran’s Governmental Group which provides
                         service to over 200 governmental units and related entities in Michigan. Frank has completed
                         a number of special projects for governmental entities in the areas of utility rates, internal
                         control systems, multi-year planning, right-of-way issues and municipal finance matters. Frank
                         also serves as an expert witness on behalf of governmental units on a variety of subjects.
                         Frank has completed several studies of the fiscal health of Michigan local governments for
                         the Michigan Municipal League, and has participated in various legislative initiatives. Frank
                         is also active in the Michigan Governmental Finance Officers Association and serves on their
                         Legislative Committee. Frank has a Bachelor of Business Administration from the University
                         of Michigan (Dearborn campus) and has been with Plante & Moran for more than 20 years
                         working with local government.

10:30 a.m.- 12:00 p.m. Design and Construction Contracts – Strategies for Controlling Costs While
                       Protecting the Public Agency.

	                        Presenters:   Don M. Schmidt, Miller, Canfield, Paddock and Stone, P.L.C.
                                       John Sier, Kitch Drutchas Wagner Valitutti & Sherbrook
                                       CDPA Architects, Inc.

                         Don M. Schmidt, a Principal with the firm, specializes in government and nonprofit
                         representation. His areas of expertise include intergovernmental agreements, economic
                         development projects, PA 425 conditional land transfers, municipal utility matters,
                         annexation, Freedom of Information Act and Open Meetings Act issues, elections,
                         construction contracts and bidding and contracting matters. Mr. Schmidt has been a featured
                         speaker at numerous seminars and conferences.
                         John Sier, a Principal with the firm, and head of the firm’s commercial litigation practice.
                         concentrates his practice in dispute avoidance and resolution of commercial, health care
                         and construction contract issues as the head of the firm’s commercial litigation group. In the
                         construction industry, Mr. Sier has experience in analyzing legal aspects of various project
                         delivery methods including drafting construction contracts as well as assisting in dispute

  Public Corporation Law Quarterly

                         resolution and project completion. In health care, Mr. Sier has handled matters involving staff
                         privileges, Medicare and third-party payer reimbursement issues as well as HIPAA compliance
                         issues. He received his Juris Doctor and Master of Arts in Mass Communication and Journalism
                         from Drake University Law School and Graduate School in 1986. He has published articles and
                         presented seminars on construction, health care and commercial issues.

                         CDPA Architects, Inc. A national architecture/egineering firm with a diverse and wide range of
                         capable in-house staff. CPDA has managed and directed numerous public agency construction
                         projects of varying size and scope bringing together architects, designers, technician and
                         specialized consultant to provide its clients with expert design, technical engineering and
                         responsible management.

Continue collegial discussions of morning topics over a taste of New Orleans of creole catfish, vegetable etoufee,
smoked pork loin and pecan pie.

1:00 p.m. - 2:30 p.m.    Retirement Benefits and Funding Options
                         Presenter:	Amy Christen, Dykema
                         Amy Christen practices in all areas of employee benefits law. Her experiences involve
                         compliance and design of qualified retirement plans (including governmental and private sector
                         defined benefit plans and profit sharing and 401(k) plans), sections 457 or 403(b) plans,
                         SEP or other nonqualified plans, and health and other welfare plans (including VEBAs, health
                         reimbursement arrangements, health savings accounts, flexible spending accounts, cafeteria
                         plans, severance plans, COBRA and HIPAA issues); advising clients on employee benefit
                         concerns in mergers and acquisitions; and ERISA litigation.


2:45p.m. - 3:30 p.m.     Title II of the ADA: Constructing Accessible Public Rights-of-Way and Reducing
                         Exposure for Plaintiffs’ Attorney Fees in the Process
                         Presenter: Abigail Elias, City of Ann Arbor
                         Abigail Elias is Chief Assistant City Attorney for the City of Ann Arbor, Michigan. Since getting
                         her J.D. from Harvard Law School, her law career has included work in the Civil Rights Division
                         of the U.S. Justice Department, the City of Detroit Law Department, including six years as
                         Deputy Corporation Counsel, and a private firm in Detroit doing commercial litigation.

3:30 p.m. – 4:00 p.m.		 ADA Roundtable
                        • Abigail Elias, Chief Assistant City Attorney, City of Ann Arbor
                        • Susan Fitzmaurice, ADA Coordinator, City of Dearborn
                        • Cathy McAdams, Chair, City of Dearborn Commission on Disability Concerns

                         Susan Fitzmaurice has been a board member of numberous disability organizations, including
                         the Washtenaw Association for Community Advocacy and United Cerebral Palsy-Detroit. She
                         is also an active member of Not Dead Yet and a prolific author on disability concerns. Ms.
                         Fitzmaurice has made numerous presentations to regional, state and international conferences
                         around issues of disability.

                                                                                                          Winter 2009, No. 1

                                                                  Winter Conference, February 6, 2009

  P #:___________________                                                Cost:
  Name: _____________________________________________                     $75 for government employees
  Your Firm/Organization:_________________________________                $125 for Public Corporation Law Section members
                                                                          $150 for non-section members
                                                                            Join the Public Corporation Law Section
  City:______________________ State: _______Zip: ______                       and get a $35 discount on the seminar.
  Telephone: ( _____ ) ______________________
  Enclosed is check # ______________________ for $________                       Mail your check and completed registration form to:
                                                                                                             State Bar of Michigan
  Please make check payable to: State Bar of Michigan                                                   Attn: Seminar Registration
                                                                                                          Michael Franck Building
  Please bill my:  Visa    MasterCard                                                    306 Townsend Street, Lansing, MI 48933
  Card #:_____________________________________________
  Expiration Date:_________________                    Fax (ONLY if paying by credit card) the completed form and credit
                                                                                                         card information to:
  Please print name as it appears on credit card:                           Attn: Seminar Registration at (517) 346-6365
                                                                      For a refund, cancellations must be received in writing
  Authorized Signature: __________________________________                         at least 72 hours in advance of the event.

        Save the Date!
        Summer Public Corporation Section
        Seminar on Mackinac Island
        June 26-28, 2009

Public Corporation Law Quarterly

Opinions of Attorney General Mike Cox
By George M. Elworth, Assistant Attorney General

 Editor’s note: Assistant Attorney General George M. Elworth of the Finance Division and a member of the Publications Committee
        furnished the text of the headnotes of these opinions. The full text of these opinions may be accessed at

Mental Health Code                                                  emergency admission is necessary under section 498h of the
  Procedure for admission of a minor court ward to a hospital for   Mental Health Code, MCL 330.1498h. If it is determined by
                      psychiatric treatment                         the appropriate health professionals that emergency admission
                                                                    of the minor ward for psychiatric treatment is not necessary,
    In the case of a minor who is a temporary ward of the           the child care facility, as the Department’s designee and person
court under MCL 712A.2 et seq, a child care facility serv-          in loco parentis, must obtain a court order empowering the
ing as the designee of the Michigan Department of Human             facility to request admission of the minor to a hospital in ac-
Services and providing placement, care, and supervision for         cordance with section 498d(3)(a) of the Mental Health Code,
the court ward as a person in loco parentis is not required         MCL 330.1498d(3)(a).
to obtain a court order before requesting emergency admis-                                                        Opinion No. 7220
sion of the ward to a hospital for psychiatric treatment if the                                                    October 20, 2008
child care facility has reason to believe the child is a “minor
requiring treatment” as defined in section 498b(b)(i) and (ii)
of the Mental Health Code, MCL 330.1498b(b)(i) and (ii)
                                                                    Prosecuting Attorneys
and that the minor presents a serious danger to self or others.      Process for appointing special prosecuting attorney based on dis-
                                                                          qualifying conflict of interest or other inability to serve
Nor is a court order required to admit the minor ward to the
hospital if the appropriate health professionals determine that          If a county prosecuting attorney determines that he or she
                                                                    is disqualified by reason of a conflict of interest or is otherwise
                                                                    unable to perform his or her duties, the prosecuting attorney
                                                                    has a duty to file a petition with the attorney general request-
                                                                    ing the appointment of a special prosecuting attorney under
                                                                    MCL 49.160(1).
                                                                         Regardless of whether a petition is filed under MCL
                                                                    49.160(1), the attorney general has authority under MCL
                                                                    49.160(2), other statutes including MCL 14.28, MCL 14.30,
                                                                    and MCL 14.101, and the common law, to make an indepen-
                                                                    dent determination regarding whether a prosecuting attorney
                                                                    is disqualified or otherwise unable to serve in a matter. If the
                                                                    attorney general determines that a prosecuting attorney is dis-
                                                                    qualified or is otherwise unable to serve, the attorney general
                                                                    may elect to proceed in the matter or may appoint a special
                                                                    prosecuting attorney to perform the duties of the prosecuting
Invite someone to join the fun                                      attorney in the matter.
                                                                                                                   Opinion No. 7221
                                                                                                                   November 7, 2008
     Invite someone to join the section.
                                                                    Urban High School Academies
                                                                    Application of the exceptions to the single-site requirement in MCL
                                                                              380.524(1) to urban high school academies

         Section membership forms can be                                 An urban high school academy duly chartered under Part
     found at                       6C of the Revised School Code, 1976 PA 451, MCL 380.1
                                                                    et seq, that operates a middle school and a high school at two

                                                                                                         Winter 2009, No. 1

different locations with different con-
figurations of grades at the two schools
is not subject to the 125-pupil-per-grade
                                               Legislative Update
restriction or the one-mile-radius limita-     By Kester K. So and Christina Pina, Dickinson Wright PLLC
tion contained in section 524(1) of the
Code, MCL 380.524(1). The 125-pupil            Over the course of the last several months, the Michigan Senate and House
and one-mile-radius conditions only ap-        of Representatives have considered numerous bills of municipal interest. The
ply under circumstances where the same                        following are summaries of some of those bills:
configuration of grades is operated at more
than one site. The academy may operate at
multiple sites with different configurations   Laws Enacted
of grades under a single contract if autho-    •   Hospital Finance. SB 1304 would amend the Hospital Finance Authority
rized to do so by its authorizing body.            Act to include public entities in the definition of “hospital,” and to exclude
     An urban high school academy duly             certain facilities from the definition. Amends 1969 PA 38, MCL 331.33.
chartered under Part 6C of the Revised
School Code, 1976 PA 451, MCL 380.1 et         •   Municipal Investments. SB 1517 would amend provisions regulating in-
seq, that operates two elementary schools          vestments to allow the investment officer of a municipality, if authorized
(both offering kindergarten through grade          by the public corporation, to invest funds in CDs in insured depository
5), one middle school, and one high                institutions in accordance with specified conditions. Amends 1943 PA 20,
school, each at separate locations, may op-        MCL 129.91.
erate under a single authorizing contract      •   School District Investments. HB 6297 would amend the Revised School
provided that the two elementary schools           Code to allow the treasurer of a school district, if authorized by the school
offering the same configuration of grades          board, to invest funds in CDs in insured depository institutions in accor-
have a combined total enrollment not ex-           dance with specified conditions. Amends 1976 PA 451, MCL 380.622 and
ceeding 125 pupils per grade and are both          1223.
located within a one-mile radius of the
academy’s central administrative office.
                                               Bills Passed by the Senate
The 125-pupil-per-grade restriction and
                                               •   Special Assessments: Police and Fire. SB 1286 would amend the statute
the one-mile-radius limitation contained
                                                   related to police and fire protection, and exclude certain land and premises
in section 524(1) of the Revised School
                                                   from special assessments which are exempt from general ad valorem prop-
Code, MCL 380.524(1), do not apply to
                                                   erty taxes under the General Property Tax Act and not subject to a specific
either the high school or the middle school
                                                   tax. Amends 1951 PA 33, MCL 41.801.
because they operate different configura-
tions of grades.                               •   New Charter Adoption Periods. SB 1345, 1346 and 1347 would amend
     An urban high school academy duly             the Home Rule Village Act, statutes relating to the State Boundary Com-
chartered under Part 6C of the Revised             mission, and the Home Rule Cities Act to extend to three years from two
School Code, 1976 PA 451, MCL 380.1                during which a new charter must be adopted following an election on
et seq, that operates grades 6 through 12          the incorporation of a village or of a proposed city, or following the State
(including a middle school and a high              Boundary Commission’s order to approve the proposed consolidation of
school) at a single location where its cen-        municipalities. Amends 1909 PA 278, MCL 78.12, 1968 PA 191, MCL
tral administrative office is also located         123.1017, and 1909 PA 279, MCL 117.16.
is not subject to the 125-pupil-per-grade      •   Township Park Commissions. SB 1487 would amend a statute relating to
restriction or the one-mile-radius limita-         township parks and places of recreation by authorizing the dissolution of
tion of MCL 380.524(1) because these               a township park commission. Amends 1905 PA 157, MCL 41.426g and
conditions apply solely to circumstances           426h.
where the same configuration of grades
                                               •   Regional Convention Facilities. SB 1630, 1631 and 1632 would create
is offered at multiple locations under a
                                                   and provide for the incorporation of certain regional convention facility
single contract.
                                                   authorities to allow for the acquisition, construction and improvement of
                                                   certain facilities, would amend the distribution of certain taxes collected as
                        Opinion No. 7219
                                                   described in the State Convention Facility Development Act, and would
                         August 27, 2008
                                                                                                            Continued on next page

Public Corporation Law Quarterly

Legislative Update
Continued from page 17

     further amend the Liquor Control Code of 1998 to extend           141.2305, 1975 PA 197, MCL 125.1651, 1980 PA 450,
     the levy of certain taxes until January 1, 2016. Creates          125.1801, and 1986 PA 281, MCL 125.2152.
     new legislation and amends 1985 PA 106, MCL 207.620           •   Large Project MEGA Credit. HB 6748 amends the Michi-
     and 640 and 1998 PA 58, MCL 436.2207.                             gan Business Tax Act to authorize the Michigan Economic
                                                                       Growth Authority (MEGA) to award tax credits to 20
Bills Passed by the House of Representatives                           projects that individually cost over $10 million. Up to
•    Regional Convention Facilities. HB 5690, 5691, 6405               three of these projects can be outside of a core community.
     would create and provide for the incorporation of certain         The bill expands the core community criteria to include
     regional convention facility authorities to allow for the         obsolete or blighted property in a brownfield plan, which
     acquisition, construction, and improvement of certain             is in a city with a population of at least 70,000, and within
     facilities, would amend the distribution of certain taxes         10 miles of another Michigan city with a population of at
     collected as described in the State Convention Facility De-       least 500,000. MEGA must give preference to mixed-use
     velopment Act, and would amend the Health and Safety              projects that satisfy certain criteria. Amends 2007 PA 36,
     Fund Act to provide for certain transfers to the conven-          MCL 208.1437.
     tion facility development fund set forth in the State Con-
     vention Facility Development Act for fiscal years ended       Bills Introduced in the Senate
     2009-2039. Creates new legislation and amends 1985            •   Adult Entertainment. SB 1612 and SB 1613 would au-
     PA 106, MCL 207.623, 628, 629, 630, 632, and 640 and              thorize a municipality to enact an ordinance requiring any
     1987 PA 264, MCL 141.475.                                         person employed at an adult entertainment business to
•    Stadia and Convention Facilities. HB 6515 would amend             obtain a work permit and levy an excise tax from persons
     existing legislation to allow additional counties or mu-          engaged in the business of operating an adult entertain-
     nicipalities within counties to levy with voter approval an       ment facility.
     excise tax of up to one percent on restaurants and bars, of
     up to one percent on hotel and motel rooms, and of up to      Bills Introduced in the House of Representatives
     two percent on rental cars. Amends 1991 PA 180, MCL           •   Local Option Transportation Taxes. HB 6322-6326,
     207.751.                                                          House Joint Resolution HHH and HB 5059. These
                                                                       six bills and one joint resolution would amend the Motor
•    Local Building Authority. HB 6619 amends the Building
                                                                       Fuel Tax Act and the Motor Vehicle Code and authorize
     Authority Act to authorize the refunding of certain bonds,
                                                                       counties to impose a specific tax on motor fuels, additional
     if issued before January 1, 2011. Amends 1948 PA 31,
                                                                       taxes on operators’ or chauffeurs’ licenses, additional real
     MCL 123.961.
                                                                       estate transfer taxes, and additional vehicle registration
•    Tax Increment Finance. HB 6620 amends the Tax Incre-              taxes, and amend the Michigan Constitution to allow a
     ment Finance Authority Act to expand the definition of            county to impose a sales tax on retailers. Amends 2000 PA
     “other protected obligation” and “qualified refunding ob-         403, MCL 207.1022, 1966 PA 134, MCL 207.504 and
     ligation.” Amends 1980 PA 450, MCL 125.1801.                      207.509, 1949 PA 300, MCl 257.1 to 257.923, creates
•    Refunding Securities. HB 6736-6740 would amend the                new acts, and amends the Michigan Constitution.
     Revised Municipal Act to authorize the refunding of cer-      •   Aerotropolis Development. HB 6502-6511 amend the
     tain securities if issued before December 31, 2012, and if        Michigan Renaissance Zone Act, the Local Development
     such securities are not secured by the unlimited full faith       Financing Act, the Plant Rehabilitation and Industrial
     and credit pledge of the municipality without meeting             Development Act, the General Property Tax Act, and the
     any net present value savings requirement, and amends             Michigan Economic Growth Authority Act to authorize
     the Downtown Development Authority Act, the Tax In-               certain local units of government located adjacent to or
     crement Finance Authority Act, and the Local Develop-             within three miles of a qualified airport to form an aer-
     ment Authority Act to expand the definition of “quali-            otropolis development corporation in order to attract
     fied refunding obligation.” Amends 2001 PA 34, MCL                aerotropolis businesses to the area, authorizes aerotropolis

                                                                                                                     Winter 2009, No. 1

    development zones (like a renaissance zone) and makes                   2162, 1974 PA 198, MCL 207.552 and 554, 1893 PA
    them eligible for certain tax increment financing, eligible             206, MCL 211.9f, and 1996 PA 376, MCL 125.2690.
    to receive property tax abatements, permits qualified busi-        •    Confidential Information. HB 6729 would amend the
    nesses to receive property tax exemptions for new per-                  Confidential Research and Investment Information Act
    sonal property owned or leased by the business and allows               limiting the exemption from disclosure from the Freedom
    such businesses to be eligible for certain Michigan busi-               of Information Act of certain intellectual property created
    ness tax credits. Amends 1996 PA 376, MCL 125.2681                      by a person employed by a public university or college.
    et seq, 1986 PA 281, 125.2152, 2153, 2154, 2154 and                     Amends 1994 PA 55, MCL 390.1554. 

I’ll Bet You Didn’t Know (or maybe you forgot):
                              Counting Bowser and Capital Punishment for Fido

        A regular feature submitted by Richard J. Figura, Simen, Figura & Parker, P.L.C., Flint and Empire, Michigan

     I’ll bet you didn’t know (or maybe you forgot) that, along        in each city or township of the county and any report under sec-
with their property tax assessment duties, township supervisors        tion 16, identify and locate all unlicensed dogs.” What may be
and local assessors are authorized to count the number of dogs         more important (to the dog, at least) is that MCL 287.277
in their assessing district. Section 16 of the Dog Law of 1919,        also provides that any dog not licensed under the Dog Law “is
1919 PA 339 [MCL 287.276] provides, in relevant part:                  a public nuisance.”
                                                                            Okay. So you neglected to get a license for your dog, and
     The supervisor of each township and the assessor of every         you got caught through the cooperative investigative efforts
     city, annually, on taking his assessment of property as           of the assessor and the county treasurer. So what? Well, you,
     required by law, may make diligent inquiry as to the              as the owner of the unlicensed dog, can be prosecuted for vi-
     number of dogs owned, harbored or kept by all persons             olating the Dog Law by the county prosecutor, who, upon
     in his assessing district;…                                       receiving your name from the county treasurer “shall at once
     Why does the assessor have this authority? Clearly, it is to      commence the necessary proceedings against the owner of the dog,
make sure that no dog goes unlicensed. MCL 287.276 goes                as required by this act.”
on to say that the assessor is to make “a complete report to the            Your dog, however (and here’s why the license is important
county treasurer… on a blank form furnished by the director of         to your dog), is in real deep doo-doo, because MCL 287.277
agriculture, setting forth the name of every owner, or keeper, of      also provides that “The sheriff shall locate and kill, or cause to be
any dog, subject to license under this act, how many of each sex       killed, all such unlicensed dogs. Failure, refusal, or neglect on the
are owned by him, and if a kennel license is maintained such fact      part of a sheriff to carry out the provisions of this section constitutes
shall be also stated.” That report is to be filed with the county      nonfeasance in office.” Now, tell me honestly, is there any sheriff
treasurer “on or before June 1.”                                       out there today who isn’t “non-feasing” in office? How many
     Since this service is provided by the assessor for the benefit    unlicensed dogs has your sheriff killed this year? I suspect that
of the county, the county is responsible for paying a fee to the       most sheriffs, if they are aware of their duties under the Dog
supervisor or assessor for making the dog count and owner              Law, are choosing to risk removal from office by the governor
identification. The fee to be paid shall be “at a rate determined      for non-feasance, as opposed to recall by the voters for killing
by the board of supervisors for each dog so listed, which sums shall   all the unlicensed dogs out there.
be paid out of the general fund of the county.”                             So capital punishment is Fido’s penalty for being a public
     Then, using the list provided by the assessor as to the iden-     nuisance, but Fido has some other capital punishment risks
tity of all dogs in the assessing district, the county treasurer can   under the Dog Law. The law provides that a dog may be killed
compare that list with the list of licensed dogs and determine         by a law enforcement officer for “molesting wildlife” unless the
which dogs are unlicensed. MCL 287.277 provides that “The              dog is hunting [MCL 287.278]. Likewise, pursuant to MCL
county treasurer may, based on records of the dogs actually licensed   287.279, any dog who is seen “in the act of pursuing, worrying,

Public Corporation Law Quarterly

I'll Bet You Didn't Know . . .
Continued from page 19

or wounding any livestock or poultry or attacking persons” may         the search offered very little information to describe it. The
be killed by “any person including a law enforcement officer.”         website of the Humane Society of the United States included
While MCL 278.279 also makes it unlawful “to kill or injure a          its 2002 annual report which did, however, describe such a
dog which bears a license tag for the current year,” even having a     device as “a horrible contraption that forced animals to reach
license doesn’t protect the dog from being killed if it is “pursu-     simulated altitudes of 60,000 feet in 60 seconds.” Ugh! Run,
ing, worrying or wounding” any livestock.                              Spot, run!
     Although some rabid dog lovers might want it otherwise, a              All of this is very interesting, but what I really want to
dog is still not a “person” for purposes of constitutional provi-      know is how do we tell if livestock is “worried” and not just
sions prohibiting cruel and unusual punishment. Nevertheless,          scared? And if we are sure the livestock is worried, how do
the Michigan legislature has prohibited some inhumane meth-            we know the worry was caused by a dog and not something
ods of executing an unlicensed dog. MCL 287.279a provides              else—like maybe a pending foreclosure on the barn? 
that “An animal control officer or other person killing a dog or
other animal pursuant to the laws of this state shall not use a high   Endnotes
altitude decompression chamber or electrocution for that killing.”     1 Perhaps those persons whose dogs are lost should consider notify-
     We all know what electrocution is, but what is a “high              ing the county treasurer and ask that the treasurer use his or her
altitude decompression chamber?” A Google search of the term             statutory authority to locate their dog.
showed most states have banned its use in killing dogs, but            2


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